[Federal Register Volume 63, Number 243 (Friday, December 18, 1998)]
[Notices]
[Pages 70160-70162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33634]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation


Implementation of Section 104 of the Communications Assistance 
for Law Enforcement Act: Telecommunications Services Other Than Local 
Exchange Services, Cellular, and Broadband PCS

AGENCY: Federal Bureau of Investigation, DOJ.

ACTION: Notice of inquiry.

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SUMMARY: The purpose of this Notice of Inquiry (NOI) is to present 
certain telecommunications carries and all other interested parties 
with an opportunity to provide input to the Federal Bureau of 
Investigation (FBI) as it develops law enforcement's capacity 
requirements for services other than local exchange, cellular, and 
broadband personal communications services (PCS). The Communications 
Assistance for Law Enforcement Act (CALEA) mandate that the Attorney 
General, on behalf of all law enforcement, provide capacity 
requirements for the actual and maximum number of interceptions (of 
call content and/or call-identifying information) that 
telecommunications carriers may be required to effect in support of law 
enforcement's electronic surveillance needs. This NOI is soliciting 
information on and suggestions for developing reasonable methodologies 
for characterizing capacity requirements for telecommunications 
services other than local exchange services, cellular, and broadband 
PCS. Such services include, but are not limited to: traditional paging, 
two-way paging, narrowband PCS, mobile satellite services (MSS), 
specialized mobile radio (SMR) and enhanced specialized mobile radio 
(ESMR), national and multi-rate services, asynchronous transfer mode 
(ATM), X.25, frame relay, airplane telephony, and railroad telephony.

DATES: Comments must be received on or before February 16, 1999.

ADDRESSES: Comments should be submitted to the Federal Bureau of 
Investigation, CALEA Implementation Section, Attention: Notice of 
Inquiry, 14800 Conference Center Drive, Suite 300, Chantilly, VA 20151. 
All comments will be available for review at the FBI's Freedom of 
Information and Privacy Act (FOIPA) Reading Room located at FBI 
Headquarters, 935 Pennsylvania Avenue, NW, Washington, DC 20535. To 
review the comments, interested parties should contact the FBI's FOIPA 
Reading Room staff, telephone number (202) 324-7510, to schedule an 
appointment (48 hours advance notice required). While printed comments 
are welcome, commenters are encouraged to submit their responses on 
electronic media. Electronic documents must be in WordPerfect 6.1 (or 
earlier) or Rich Text Format (RTF) format. Comments must be the only 
file on the 3.5 inch disk. In addition, all electronic submissions must 
be accompanied by a printed sheet listing the name, company or 
organization name address, and telephone number of an individual who 
can replace the disk should it be damaged in transit.

[[Page 70161]]

SUPPLEMENTARY INFORMATION:

I. Background

A. Purpose of CALEA

    On October 25, 1994, President Clinton signed into law the 
Communications Assistance for Law Enforcement Act (CALEA).\1\ Its 
objective is to make clear a telecommunications carrier's duty to 
cooperate with law enforcement with regard to electronic surveillance-
related interceptions for law enforcement purposes.\2\ CALEA was 
enacted to preserve law enforcement's ability (pursuant to court order 
or other lawful authorization) to access call content and call-
identifying information in an ever-changing telecommunications 
environment. On March 3, 1995, the Attorney General delegated to the 
Director of the FBI, or his designee(s) the authority to carry out the 
responsibilities conferred upon the Attorney General in Title I of 
CALEA.\3\ The FBI is implementing CALEA on behalf of all Federal, 
state, and local law enforcement agencies.
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    \1\ Pub. L. 103-414, 47 U.S.C. 1001-1010.
    \2\ For purposes of this NOI, the word ``interception'' is used 
to refer to either the interception of call content or call-
identifying information.
    \3\ See 28 CFR 0.85(o).
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    In 1968, when Congress statutorily authorized court-ordered 
electronic surveillance, there were no technological limitations on the 
number of call content or call-identifying interceptions that could be 
conducted.\4\ However, the onset of new and advanced services has begun 
to erode the telecommunications industry's ability to support law 
enforcement's court-authorized interception needs. In an effort to 
preserve the ability to conduct interceptions, Congress determined that 
technological solutions must be employed to meet the needs of law 
enforcement through the provision of new and advanced services.
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    \4\ See Title III of the Omnibus Crime Control and Safe Streets 
Act of 1968, as amended, 18 U.S.C. 2510-2522.
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    The intent of CALEA is to define and clarify the level of 
assistance required from the telecommunications industry. CALEA does 
not alter or expand law enforcement's fundamental statutory authority 
to intercept communications. It simply seeks to ensure that, after law 
enforcement obtains legal authority, telecommunications carriers will 
have the necessary technical ability to fulfill their statutory 
obligation to provide law enforcement with the technical assistance 
necessary to carry out the court-authorized intercepts.

B. Capacity Notice Mandate

    Because many future interceptions will be effected through 
equipment controlled by telecommunications carriers, section 104 of 
CALEA requires the Attorney General to provide carriers with 
information they will need (a) to be capable of accommodating the 
actual number of simultaneous interceptions at specific geographic 
locations that law enforcement may need to conduct, and (b) to size and 
design their networks to accommodate the maximum number of simultaneous 
interceptions at specific geographic locations that law enforcement may 
need to conduct at some future date. These two information elements are 
referred to in CALEA as ``actual'' and ``maximum'' capacity 
requirements. In accordance with section 104 of CALEA, the Attorney 
General must provide notice of estimated future actual and maximum 
capacity requirements. The statute defines these requirements as 
follows:

    For actual capacity: The actual number of communication 
interceptions, pen registers, and trap and trace devices, 
representing a portion of the maximum capacity, that the Attorney 
General estimates that government agencies authorized to conduct 
electronic surveillance may conduct and use simultaneously by the 
date that is 4 years after the date of enactment of CALEA.\5\
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    \5\ See 47 U.S.C. 1003(a)(1)(A).
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    For maximum capacity: The maximum capacity required to 
accommodate all of the communication interceptions, pen registers, 
and trap and trace devices that the Attorney General estimates that 
government agencies authorized to conduct electronic surveillance 
may conduct and use simultaneously after the date that is 4 years 
after the date of enactment of CALEA.\6\
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    \6\ See 47 U.S.C. 1003(a)(1)(B).

    Under section 104 of CALEA, telecommunications carriers must be in 
compliance  with capacity requirements 3 years after the effective date 
of a Final Notice of Capacity for a specific telecommunications 
service. Although the Attorney General must estimate the actual number 
of call content interceptions, pen registers, and trap and traces that 
a carrier may be required to accommodate simultaneously at specific 
geographic locations by that date, the estimates should not be 
interpreted to mean the number of interceptions that law enforcement 
intends to, or is planning to, conduct.\7\ The number of interceptions 
that will actually be needed will be determined by active law 
enforcement investigations requiring authorized electronic 
surveillance.
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    \7\ 47 U.S.C. 1003(b)(1).
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    Maximum capacity, on the other hand, is a capacity level that 
telecommunications carriers must be able to accommodate 
``expeditiously'' if law enforcement requires an increase in the 
future. The term ``expeditious'' specifically refers to Section 104 
capacity requirements regarding incremental expansion up to the maximum 
capacity.\8\ It should not be confused with ``expeditious access'' to 
call content and call-identifying information as used in section 103 of 
CALEA, which pertains to the assistance capability requirements. 
Because CALEA does not define the term ``expeditiously,'' this NOI 
solicits from interested parties suggestions for the appropriate length 
of time to be designated for incremental expansion to the maximum 
capacity.
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    \8\ 47 U.S.C. 1003(b)(2).
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    Law enforcement has interpreted maximum capacity chiefly as a 
requirement that telecommunications carriers will follow to determine a 
capacity ceiling. This ceiling is intended to provide 
telecommunications carriers with a stable framework for cost-
effectively designing future capacity into their networks. It also 
provides for accommodating future interception-related ``worst-case 
scenarios.'' Establishing the maximum capacity will allow 
telecommunications carriers to assist law enforcement during serious, 
unpredictable emergencies requiring an unusual level of interception 
activity.

C. Final Notice of Capacity for Local Exchange, Cellular and Broadband 
PCS Services

    On March 12, 1998, the FBI published in the Federal Register\9\ a 
Final Notice of Capacity. While CALEA applies to all telecommunications 
carriers,\10\ the March 12, 1998 Final Notice of Capacity covered only 
those telecommunications carriers offering local exchange services and 
certain commercial mobile radio services, specifically cellular service 
and broadband PCS.\11\ Exclusion from the March 12, 1998 Final Notice 
of Capacity of other telecommunications carriers that have services 
currently deployed or anticipate deploying services in the near term, 
does not exempt them from the statutory obligations of CALEA. Thus, the 
purpose of this NOI is to give telecommunications carriers providing 
other telecommunications services covered by CALEA an opportunity to 
provide input to the FBI as it develops

[[Page 70162]]

law enforcement's capacity requirements.
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    \9\ 63 FR 12218 (March 12, 1998).
    \10\ Telecommunications carrier as defined by 47 U.S.C. 1001(8).
    \11\ Specifically, it refers to those services operating in the 
licensed portion of the 2 GHz band of the electromagnetic spectrum, 
from 1850 MHz to 1990 MHz.
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II. Capacity Requirements for Telecommunications Services Other 
Than Local Exchange Services, Cellular, and Broadband PCS

    Given the dynamic nature of the telecommunications industry and the 
diverse nature of telecommunications services, the FBI has determined 
that it is in the best interest of all parties concerned that it 
solicit input from the telecommunications industry and other interested 
parties regarding the development of reasonable methodologies for 
characterizing capacity requirements for telecommunications services 
other than local exchange, cellular, and broadband PCS, prior to 
instituting a rulemaking proceeding.\12\ The FBI is committed to the 
consultative process and to maintaining an on-going dialogue with the 
telecommunications industry. The FBI seeks to draw upon the expertise 
of industry to gain an understanding of the range of options available 
for expressing capacity requirements for various telecommunications 
services. Those services yet to be address by a notice of capacity 
include, but are not limited to:
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    \12\ This action is considered a rulemaking under the 
Administrative Procedure Act, 5 U.S.C. Sec. 553.
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     Traditional paging,
     Two-way paging,
     Narrowband PCS,
     MSS,
     SMR and ESMR,
     National and multi-rate services,
     Asynchronous transfer mode (ATM),
     X.25,
     Frame relay,
     Airplane telephony, and
     Railroad telephony.
    Any telecommunications carriers whose services were not covered in 
the March 12, 1998 Final Notice of Capacity but are subject to CALEA, 
are strongly encouraged to comment on this NOI.
    Commenters are asked to address the requirements regarding the 
basis for capacity notices set forth in CALEA section 104(a)(2):

    The notices issued. * * *
    (A) may be based upon the type of equipment, type of service, 
number of subscribers, type or size of carrier, nature of service 
area, or any other measure; and
    (B) shall identify, to the maximum extent practicable, the 
capacity required at specific geographic locations.

    Commenters should address approaches that are best suited to their 
specific services, with emphasis upon the capacity needed on a 
geographic basis. However, the FBI recognizes that certain services may 
not lend themselves to geographic expression, and therefore also 
encourages comments on alternative means of characterizing capacity. 
Commenters are also asked to address any other service-specific 
capacity issues that the FBI should take into consideration when 
developing capacity methodologies. While different services will 
require different methods for characterizing capacity, commenters 
should review the methodology for determining capacity requirements set 
forth in the March 12, 1998 Final Notice of Capacity before preparing 
comments in this proceeding.\13\ Also, because CALEA does not define 
the term ``expeditiously,'' this NOI solicits from interested parties 
suggestions for the appropriate length of time to be designated for 
incremental expansion to the maximum capacity.
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    \13\ See 63 FR 12218, and 12224-12227 (March 12, 1998).
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    The FBI is committed to giving all interested parties the 
opportunity for meaningful participation in CALEA and will continue to 
work with the telecommunications industry to develop capacity 
methodologies and notices of capacity for all telecommunications 
services subject to CALEA.\14\
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    \14\ The FBI is acting in accordance with the rulemaking 
requirements of the Administrative Procedure Act, 5 U.S.C. 553.
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    This is a Notice of Inquiry proceeding where ex parte 
communications are permitted pursuant to 28 CFR 50.17.

[47 U.S.C. Secs. 1001-1010]

    Dated: December 15, 1998.
Louis J. Freeh,
Director, Federal Bureau of Investigation, Department of Justice.
[FR Doc. 98-33634 Filed 12-17-98; 8:45 am]
BILLING CODE 4410-02-M